6. Discussion
6.1 Whether the Customer's Signature was Forged on CSI Forms
The threshold question in this matter is whether Complainant, PHR, forged the signature of its customer, Gary Vettese, on CSI incentive application paperwork.
The testimony provided by Vettese, the homeowner involved, is relevant and informative on this question. In a written declaration and at the hearing, Vettese provided credible testimony that he did not sign the two documents submitted by MEI on behalf of PHR to CCSE on October 27, 2010, namely the contract addendum dated October 26, 2010 and the accompanying registration of warranty. According to Vettese, when Smith of CCSE asked Vettese on November 4, 2010 whether he had signed these documents less than 10 days earlier on October 26, 2010, Vettese told her that he had not signed either document. (Exh. 144 at 2-3; RT 133: 20-28; RT 134: 6-26.) Vettese also stated he did not authorize any party to sign the contract addendum or registration of warranty on his behalf. (Exh. 144 at 3.)
Vettese reiterated these statements at the hearing when examined by the Administrative Law Judge. Vettese stated he did not recall anyone from PHR or MEI coming to his home in October 2010 requesting he sign a warranty and contract addendum. (RT 143: 11-16.) He also stated that no one from PHR or MEI visited his home after he signed off on the completion of the work4 until a visit from PHR/MEI representatives on November 24, 2010 following contact from Vettese regarding concerns that his system was potentially undersized. (RT 144: 12 - 145: 5.) The testimony of MEI's McGuire supports Vettese's recollection that no one from MEI visited the Vettese home after the system was installed in September until late November 2010. (RT 97: 7-11; RT 100: 16-27.) Bolin of PHR also testified that MEI was responsible for all CSI incentive paperwork and that he himself never communicated with Vettese. (RT 39: 13-24; RT 55: 10-17.)
Further support for the forgery claim was provided by CCSE's expert witness Sandra Homewood, a certified Forensic Document Examiner, with over 35 years of experience examining questioned documents for the San Diego Police Department Crime Laboratory, the Arizona Department of Public Safety, and District and U.S. Attorney's offices throughout California and the western United States. Homewood compared signatures on seven documents known to be signed by Gary Vettese with the signatures on the two allegedly forged documents.
At the hearing, Homewood provided Exhibit 143-A containing her comparative handwriting analysis. Her analysis indicates that differences in the slant and angularity of the handwriting, the formation of the capital letters, letter height, signature ending, and pen strokes lead to her conclusion that the signatures on the questioned documents were not written by Gary Vettese. (RT 13: 14 - 15: 23.) Homewood testified that these numerous differences in the known and questioned signatures lead to her expert opinion that the questioned signatures are "very probably not" the genuine signature of Gary Vettese, but are attempts to simulate his writing habits by someone in possession of his true signature. (Exh. 143 at 3.) According to Homewood, the American Society for Testing and Materials, which develops common standards for the examination of questioned documents, defines "very probably not" as "virtually certain." (Ibid.) Homewood also testified that if this were a criminal case, her opinion of "very probably not" would equate to "beyond a reasonable doubt." (RT 16: 18-25.)
PHR's arguments in defense of the forgery claim are less credible than the testimony of Vettese and Homewood. First, PHR claims a forgery is not proven because Vettese retracted his allegation of forgery in his December 10, 2010 letter. However, Vettese's "retraction" is unclear because it does not state that Vettese himself signed the documents in question on October 26, 2010. This would be a clear retraction. Instead, Vettese's letter is carefully worded to state he no longer questions the prior signature because he has signed new documents. (Exh. 133 at 1; RT 134: 1-5 and 135: 6-10.) Moreover, the retraction letter is clouded by the less than clear circumstances surrounding the deal Vettese and PHR forged for three free additional solar panels on the Vettese home. It is unclear who suggested the additional panels, but clearly, both parties stood to gain from the arrangement. Vettese received additional panels and more solar production to offset his electric bill, while PHR got a carefully worded "retraction" from Vettese. The record also indicates that MEI drafted a retraction letter that Vettese refused to sign.5 Instead, Vettese stated he prepared his own letter, which he considered more "factual in terms of the situation." (RT 132: 21- 133: 4.)
Second, PHR maintains that CCSE failed to provide evidence that anyone at PHR or MEI forged Vettese's signature. PHR's witness Bolin claims that in discussing the alleged forgery with PHR employees and the subcontractor MEI, he could find no evidence of forgery. (Exh. 6 at 2.) Two MEI employees claim that they saw Vettese sign everything related to the project. However, the first statement refers to paperwork signed in December 2010, and is silent on the questioned documents of October 2010. (Exh. 134.) The second statement indicates an MEI employee witnessed Vettese signing all paperwork for completion of his solar project, but it does not provide any dates when this might have occurred. (Exh. 135.) Neither statement answers the question whether MEI obtained Vettese's signature on the questionable documents on October 26, 2010.
Overall, the testimony of both Bolin and McGuire provides little information about their investigation of the alleged forgery. Neither Bolin nor McGuire appear to know who handled the specific October 2010 documents at issue in this case. PHR cannot produce an employee of either PHR or MEI who admits to obtaining Vettese's signature in October 2010. The suspicious contract addendum was signed by a "company representative" in addition to Vettese, but both Bolin and McGuire testify they do not know who signed on the company representative line. (RT 62: 7-9; RT 108: 20 - 109: 6.) Bolin stated he never inquired who might have signed for the company, assuming it was someone from MEI since MEI turned in all the documents. (RT 62: 28 - 63: 7.) McGuire explained that it was "the sole responsibility of [MEI] to get documents signed and sent in to the CSI organization" on the Vettese project. (Exh. 128 at 3.) McGuire stated he had no contact with Vettese from September 2010 to November 2010. (RT 97: 7-11; RT 100: 16-27.) It further lacks credibility to suggest Vettese signed the documents in October 2010 when no one from MEI or PHR can identify who might have gone to the Vettese home in that time period.
While Gordon at MEI directly corresponded with Smith at CCSE regarding the suspended application and provided the suspicious documents on the deadline date, Bolin and McGuire are silent on what they asked Gordon about these documents. As CCSE points out, there is no need to determine who actually committed the forgery. The evidence is substantial that Vettese did not sign the questioned documents.
Third, PHR contends that it is possible that Vettese himself signed the questioned documents on October 26, 2010, while purposely modifying his "genuine signature" so as to make it appear someone else had forged the documents. In other words, PHR implies that Vettese has lied repeatedly when he stated that it is not his signature on the questioned documents, and that Vettese plotted to extort free solar panels from PHR. (PHR Reply Brief, 9/23/11 at 3.) PHR's argument is not credible and the facts do not support it. CCSE initiated the call to Vettese regarding the suspicious signatures, and not vice versa. According to the record, Vettese had not yet raised any dissatisfaction with his PV system at the time CCSE called him. (RT 142: 4-14.) The first evidence of Vettese contacting PHR or MEI with concerns about his system is late November 2010, after CCSE called him to investigate the alleged forgery. (Exh. 128 at 4.)
Vettese is credible when he testifies that the first time he saw the warranty and contract addendum documents was when CCSE e-mailed them to him on November 4, 2010. (RT 143: 11-144: 16.) We do not agree with PHR that Vettese's actions constitute extortion. CCSE initiated action against PHR, not Vettese. The record reflects that Vettese was a dissatisfied customer who, by chance, was given evidence by CCSE that someone at either PHR or MEI had forged his signature on contract and warranty documents. He used this information as leverage to improve his solar installation in exchange for a letter saying he was now satisfied.
Finally, circumstances suggest a strong motivation for an employee at either PHR or MEI to forge Vettese's signature. The deadline for submitting the missing paperwork required by CCSE was October 27, 2010. The documents were sent to CCSE on the deadline date, with signatures dated the day prior. Failure to submit these documents would have resulted in cancellation of the application and a requirement to resubmit it. Based on public announcements, CCSE was about to lower CSI incentives from $0.65 per watt to $0.35 per watt. If the application had to be resubmitted, it would no doubt only qualify for the lower incentive. This would have been a loss to PHR, not Vettese, since the arrangement between Vettese and PHR involved payment of the CSI incentive to PHR directly.6 It is highly plausible that someone at PHR or MEI found it easier to forge the documents rather than delay to obtain an actual signature from the customer, Vettese, and risk PHR losing the $0.65 per watt incentive rate.
Therefore, the Commission finds that CCSE reasonably concluded that the October 26, 2010 contract addendum and registration of warranty for the Vettese application were forged.
6.2 Whether CCSE Acted Reasonably in Disqualifying PHR from CSI
The second key question in this matter is whether CCSE improperly disqualified PHR from the CSI Program. As noted previously, the CSI Handbook states that forged paperwork is grounds for immediate disqualification from the CSI Program. (See CSI Handbook Section 4.10.1.) The Commission finds in Section 6.1 above that CCSE reasonably concluded that documents submitted by PHR regarding the Vettese incentive application were forged. Given this finding, the Commission now turns to the question of whether CCSE acted reasonably in the process it used to disqualify PHR.
PHR claims that it received no notice or opportunity to be heard regarding its disqualification from CSI prior to receiving Airth's November 30, 2010 letter on behalf of the CSI Program Administrators. (Exh. 6 at 2.) CCSE responds that the CSI Handbook allows immediate disqualification for forgery and does not require prior notice or an opportunity to be heard. In addition, the rule does not require there be multiple instances of forged paperwork for disqualification to occur.
CCSE's Airth provided testimony regarding his handling of subsequent appeals by PHR. PHR and MEI corresponded with CCSE on December 6, 13 and 16, 2010. (See Exhibits 128, 129 and 131.) Airth responded to PHR's appeal on December 17, 2010, and again on December 22, 2010, providing information on how PHR could appeal its disqualification to the Commission. (Exhs. 138 and 139.) Airth testified that as part of reviewing the appeal, he spoke to the Vetteses again by phone and e-mail to discuss the retraction letter.7 It was only after speaking to the Vetteses in December 2010 that CCSE learned of the three additional panels installed at no cost on the Vettese home by PHR/MEI. Airth explains this led him to conclude that the only reason Vettese had provided the retraction letter was in order to receive these additional panels. Airth concluded there was no reason to change CCSE's prior conclusion that application documents submitted by MEI for PHR had been forged.
In addition, PHR claims that Airth of CCSE is biased against PHR based on an article that appeared in a San Diego area newspaper, the North County Times, on February 5, 2011. (Exh. 4.) According to PHR, Airth repeatedly denigrated PHR and two other contractors for what Airth perceived were bad business practices, namely charging customers too much money. (Exh. 6 at 2.)
The North County Times article questioned by PHR states "Airth and other industry professional said [PHR] also used pressure sales tactics." (Exh. 4 at 4.) In the article, Airth describes sales tactics of two solar installers, and he states that PHR and another installer are the subject of numerous complaints. The article quotes Airth as follows:
They'll (Sungate and [PHR]) sell you six to 10 panels, they'll tell you these are the highest-producing modules on the market, and that's it,...[c]ustomers will hardly notice the difference on their electric bill. (Ibid.)
In response to the bias claim, Airth responds that any statements he has made about PHR are based on information he has obtained about PHR's own conduct from customer complaints and an analysis of CSI data. Airth provided copies of correspondence he received from a PHR customer with a complaint about an undersized system that was not cost-effective. (Exhs. 173, 174, and 176.) Further, Airth provided an analysis of CSI data he performed comparing PHR projects to data for all CSI projects statewide, and all CSI projects within CCSE's jurisdiction. (Exhs. 136 and 137.) Airth's analysis indicates that cost per watt for PHR systems is substantially higher, $14.03 per watt, compared to other statewide CSI contractors' costs of $8.82 per watt. (Exh. 146 at 8; Exhs. 136 and 137.) Moreover, Airth's analysis indicates the average percentage of energy consumption offset by PHR systems is substantially lower, only 46.38%, when compared to the 70.83% of consumption offset by systems installed by all other contractors in the SDG&E service territory administered by CCSE. (Ibid.)
The Commission concludes that CCSE's actions regarding disqualification of PHR were reasonable. PHR presented no evidence that the investigation by CCSE or its handling of the subsequent appeal by PHR was unreasonable. CCSE responded to PHR's appeal inquiries in a timely fashion and provided information to PHR on how to pursue a complaint with the Commission. PHR questions the letter CCSE sent to PHR's customers notifying them of PHR's disqualification. (Exh. 127.) CCSE's letter to PHR customers was specifically required by CSI Handbook Section 4.10.3.2 and properly notified PHR customers that their incentive applications would be suspended. The letter described the actions customers could take to still receive a CSI incentive and does not accuse PHR of forgery or any wrongdoing. The Commission finds that CCSE's letter to PHR customers was appropriate.
Further, there is little credibility to the claim that Airth is biased against PHR. Airth's analysis shows that PHR systems are small and generally less cost-effective for customers than other systems tracked in the CSI database, both in the SDG&E territory and statewide. This results in less saving for the consumer in comparison to the cost of the solar energy system. Airth's statements regarding sales tactics and PHR's business practices are also supported by information CCSE had obtained regarding customer complaints, system cost and system performance. (See Exhibits 173, 174, 176, and 136, 137.)
6.3 Whether PHR Should be Reinstated to CSI
PHR has not met its burden of proof that CCSE violated the CSI Handbook and improperly disqualified PHR from the CSI Program. Therefore, there is no reason to require CCSE or the other CSI PAs to reinstate PHR in the CSI Program.
The Commission agrees with the statement of CCSE in its brief:
When initially confronted with the facts, [PHR] made no effort to investigate. Instead, it unsuccessfully attempted to induce the victim to change his testimony. When that failed, PHR made the spurious claim that Mr. Airth of CCSE, who diligently investigated the facts and acted as the CSI Program Handbook prescribes, was biased and resentful. To this day, it refuses to admit that any wrongdoing even occurred. (CCSE Opening Brief, 9/16/11 at 19.)
Moreover, PHR's witness Bolin showed a lack of understanding of CSI Program rules and policies, had poor recall of events, and provided many evasive answers.8 As CCSE noted in its brief, due diligence and quality control by the CSI PAs stimulates the solar industry to maintain a high standard of excellence for its contractors. A large pool of skilled, reliable and honest contractors encourages customers to purchase solar energy systems and facilitates the establishment of a self-sufficient solar industry. The Commission agrees with CCSE that violations of CSI Program rules should be treated seriously.
4 Vettese's wife signed the PHR Solar Completion Certificate on September 13, 2010. (Exh. 154 at 33.)
5 Neither party produced a copy of this letter on the record.
6 The Vetteses presumably received a discounted price for their solar energy system in exchange for allowing PHR to collect the CSI incentive, although the contract does not estimate the CSI incentive amount. (RT 30: 5-10.)
7 Airth spoke to Mrs. Vettese on December 13, 2010 and e-mailed Mr. Vettese on December 17, 2010. (Exhs. 130 and 132.) Vettese responded on December 20, 2010. (Exh. 133.)
8 See for example, RT 43: 22-44: 3 (Bolin never looked at the CSI Handbook); RT 39: 8-24 (Bolin is not familiar with CSI incentive paperwork); RT 30: 5-10 and Exh. 154 at 5-8 (the Vettese solar installation contract did not show the estimated CSI incentive amount); and RT 61: 19-63: 25 (Bolin is evasive regarding who signed the contract addendum for the company).
